What is divorce, annulment and separation?
When thinking about ending a marriage, most would think of divorce is the only means to do so. However, there are other options, such as separation and annulment, which may be more suitable than getting a divorce for their particular circumstances. Each of these options has different outcomes on one’s marital status and have different legal requirements. This article outlines below the differences between divorce, separation, and annulment to help you understand which option is best fitted to your needs.
A divorce is a legal procedure through which a marriage is formally ended. After a divorce, the parties’ marital status will be classified as “divorced”. A divorced applicant has a number of requirements to meet in order to have the divorce granted. Firstly, to be eligible to file for divorce, the applicant or their spouse must be domiciled or habitually resident in Singapore for at least 3 years immediately before the commencement of the divorce proceedings. Secondly, parties must have also have been married for at least 3 years. After meeting these preliminary requirements, the divorce applicant has to satisfy the court that the marriage has irretrievably broken down. They may do so by relying on any one of the following reasons:
- Unreasonable behaviour;
- Desertion of at least 2 years;
- Separation of at least 3 years, with the other party consenting to the divorce;
- Separation of at least 4 years.
After hearing the parties, if the court is satisfied that the marriage has irretrievably broken down, the court will grant the Interim Judgment and order that the marriage is dissolved.
The effect of a divorce and an annulment is similar – the couple is no longer married to each other. However, the mechanism through which the marital relationship is ended differs. Unlike a divorce, the annulment of marriage treats the marriage as never having existed at all. Therefore, the parties to an annulment will have their marital status reverted to the status before the annulled marriage took place. There is no 3-year time bar to apply for annulments. To have the marriage successful annulled, the applicant has to prove certain facts to show that the marriage is void or voidable. A void marriage is one that has been invalid since the start of the marriage. It is considered an invalid marriage regardless of whether it has been annulled. This happens when there was a failure to meet the requirements of a valid marriage. On the other hand, a voidable marriage is formed lawfully and remains legally valid until one party successfully applies for annulment to have the marriage declared void. Section 105 of the Women’s Charter sets out the circumstances in which a marriage can be found to be void:
- Marriage was not properly solemnised;
- Parties to the marriage are too closely related;
- One of the parties was below the age of 18;
- Parties are of the same sex;
- One of the parties remains married to another person;
- Marriage between Muslims that was solemnised or registered under the Woman’s Charter, instead of the Administration of Muslim Law Act.
Section 106 of the Women’s Charter sets out the circumstances in which a marriage can be found to be voidable:
- The marriage remains unconsummated due to either party’s incapacity to consummate it;
- The marriage remains unconsummated because the defendant refuses to consummate it;
- Either party did not validly consent to the marriage, as a result of duress, mistake, mental disorder or otherwise;
- At the time of the marriage either party, though capable of giving valid consent, was suffering from a mental disorder within the meaning of the Mental Health (Care and Treatment) Act 2008 of such a kind or to such an extent as to be unfit for marriage;
- At the time of marriage, the defendant was suffering from a contagious sexually transmitted disease;
- At the time of marriage, the defendant was pregnant with another person’s child beside the plaintiff.
In a separation, although the couple may have decided to lead separate lives and there is no longer any semblance of marriage, they are still legally married to each other and their marital status remains “married”. As such, parties to a separation agreement will not be able to remarry. One reason that some couples opt to have a separation agreement instead of a divorce is that the latter may contravene their moral or religious principles. They may also be elderly and have no intentions of remarrying, and a separation agreement would help avoid the social stigma associated with divorce. Some couples choose to make a separation agreement because they are not interested in continuing the marital relationship, but are not willing to go through a divorce for the time being. Furthermore, opting for a separation agreement leaves open the possibility of reconciliation, unlike a divorce which formally terminates the marriage. On the other hand, there are many couples who make a separation agreement specifically because they intend to get divorced, on the basis of living separately for at least 3 years. The separation agreement is a useful precursor to divorce as it helps to prepare parties for the termination of the marriage and subsequent living arrangements. The requirements for a separation agreement vary quite widely, as there are several types of separation agreements, each with its own requirements. An informal separation is the cheapest and least complex agreement, where parties choose to live apart and may decide on the terms of the separation themselves, even without a written document. While it is not necessary for the couple to live in separate households for the separation to be valid as a basis for divorce, there must be a clear disruption of marital and sexual relations. This means that parties should abstain from performing typical spousal duties such as doing the laundry or cooking for each other. In contrast, a formal separation will involve a deed of separation, which will properly set out the terms of the parties’ relationship for the period of separation. A deed of separation should contain the date of the parties’ separation, the agreement that they will continue to live separately, and other details pertaining to their living and financial arrangements. This will include agreements on the custody of the children (if any), division of the matrimonial home and other assets, and the maintenance sum for the upkeep of the spouse and/or children. Due to the complexity of a deed of separation, it is common for couples to engage the services of a lawyer to draft the document. There is no need for the deed of separation to be filed in court. Finally, judicial separation is a separation agreement that involves the oversight of the court. Similar to a divorce, the court will only grant a judgment of judicial separation if it is satisfied that the marriage has broken down irretrievably. An application for judicial separation is more complex than the other types of separation and will cost the most. However, a party may still prefer judicial separation over a deed of separation if they are concerned that their spouse will not abide by the terms of the deed of separation. A judicial separation encourages greater compliance as it is a court order and any failure to comply with its terms may result in the defaulting party being charged with contempt of court.
|Impact on marital status||Becomes “divorced”||Reverts to the status before marriage||Remains married|
|Reasons to apply||To formally terminate the marriage with no intentions of reconciliation||Able to apply even before marriage reaches 3 years||Avoids the “divorced” marital status, for religious, moral, or social reasons Useful precursor to prepare for divorce Leaves open the possibility of reconciliation|
|Requirements||Has been married for 3 years Either party is domiciled or habitually resident in Singapore Satisfy the court that the marriage has irretrievably broken down||Show that the marriage is void or voidable No requirements of domicile or habitual residence, but both parties must be residing in Singapore||Informal separation: Cessation of spousal and marital duties Formal separation: Deed of separation, typically drafted by a lawyer Judicial separation: Apply for judicial separation in court and show that the marriage has irretrievably broken down|
ABOUT PKWA FAMILY LAW
At PKWA Law, our team of Family Lawyers are consistently named as leading Singapore family and divorce lawyers by respected legal publications such as Benchmark Litigation Asia Pacific, Straits Times, Asian Legal Business, Singapore Business Review and Doyle’s Guide.
Contact us at tel 6854-5336 for a free first consultation.
Disclaimer: The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only, and to enable you to learn more about our firm, our services and our lawyers. Information on this website may not constitute the most up-to-date legal or other information. Readers of this website should engage a lawyer to obtain advice with respect to any particular legal matter.